About Me

My photo
Lift your lamp beside the golden door, Break not the golden rule, avoid well the golden calf, know; not all that glitters is gold, and laissez faire et laissez passer [let do and let pass] but as a shining sentinel, hesitate not to ring the bell, defend the gates, and man the wall

Saturday, July 2, 2011

Federalist No. 20

The Insufficiency of the Present Confederation to Preserve the Union
From the New York Packet.
Tuesday, December 11, 1787.
Author: Alexander Hamilton and James Madison
To the People of the State of New York:

THE United Netherlands are a confederacy of republics, or rather of aristocracies of a very remarkable texture, yet confirming all the lessons derived from those which we have already reviewed.

The union is composed of seven coequal and sovereign states, and each state or province is a composition of equal and independent cities. In all important cases, not only the provinces but the cities must be unanimous.

The sovereignty of the Union is represented by the States-General, consisting usually of about fifty deputies appointed by the provinces. They hold their seats, some for life, some for six, three, and one years; from two provinces they continue in appointment during pleasure.

The States-General have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas and demand contributions. In all these cases, however, unanimity and the sanction of their constituents are requisite. They have authority to appoint and receive ambassadors; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern as sovereigns the dependent territories. The provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects. A council of state, a chamber of accounts, with five colleges of admiralty, aid and fortify the federal administration.

The executive magistrate of the union is the stadtholder, who is now an hereditary prince. His principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of Europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon.

As stadtholder of the union, he has, however, considerable prerogatives.

In his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the States-General, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts.

In his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns.

In his marine capacity he is admiral-general, and superintends and directs every thing relative to naval forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenant-admirals and other officers; and establishes councils of war, whose sentences are not executed till he approves them.

His revenue, exclusive of his private income, amounts to three hundred thousand florins. The standing army which he commands consists of about forty thousand men.

Such is the nature of the celebrated Belgic confederacy, as delineated on parchment. What are the characters which practice has stamped upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.

It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution.

The union of Utrecht, says another respectable writer, reposes an authority in the States-General, seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory.

The same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota.

In matters of contribution, it is the practice to waive the articles of the constitution. The danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. The great wealth and influence of the province of Holland enable her to effect both these purposes.

It has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confedracy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and persevering defense.

Foreign ministers, says Sir William Temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. In 1726, the treaty of Hanover was delayed by these means a whole year. Instances of a like nature are numerous and notorious.

In critical emergencies, the States-General are often compelled to overleap their constitutional bounds. In 1688, they concluded a treaty of themselves at the risk of their heads. The treaty of Westphalia, in 1648, by which their independence was formerly and finally recognized, was concluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the constitutional principle of unanimity was departed from. A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities.

Notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. "Under such a government," says the Abbe Mably, "the Union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. This spring is the stadtholder." It is remarked by Sir William Temple, "that in the intermissions of the stadtholdership, Holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place."

These are not the only circumstances which have controlled the tendency to anarchy and dissolution. The surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy.

The true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by EXTRAORDINARY ASSEMBLIES, convened for the special purpose, to apply a remedy. As many times has their laudable zeal found it impossible to UNITE THE PUBLIC COUNCILS in reforming the known, the acknowledged, the fatal evils of the existing constitution. Let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.

A design was also conceived of establishing a general tax to be administered by the federal authority. This also had its adversaries and failed.

This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their distiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own.

I make no apology for having dwelt so long on the contemplation of these federal precedents.

We must hold sacred those inarguable truths we learn from history. One such truth being that every law must govern men including rulers equally, and that government must be accountable to its citizenry. This contradicting and juxtaposed to individual sovereignty to the point of anarchy; the rule or coercion,of violence in place of law.

Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth, which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of the mild and salutary COERCION of the MAGISTRACY.

Jefferson To The Danbury Baptists Re Wall Of Separation Jan 1, 1802


To messers [misters]. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.
Gentlemen
The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.
Believing with you that religion is a matter which lies solely between Man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

INTERNATIONAL LAW

__________________________________________________________________________________
[Abolish the UN]
__________________________________________________________________________________



__________________________________________________________________________________

__________________________________________________________________________________

International Covenant on Civil and Political Rights

Article 19

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
__________________________________________________________________________________

The European Convention on Human Rights

ARTICLE 10

  1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
__________________________________________________________________________________


__________________________________________________________________________________
Geneva Convention
This article states that the Geneva Conventions apply to all cases of international conflict, where at least one of the warring nations have ratified the Conventions. Primarily:

The Conventions apply to all cases of declared war between signatory nations. This is the original sense of applicability, which predates the 1949 version.
The Conventions apply to all cases of armed conflict between two or more signatory nations, even in the absence of a declaration of war. This language was added in 1949 to accommodate situations that have all the characteristics of war without the existence of a formal declaration of war, such as a police action.
The Conventions apply to a signatory nation even if the opposing nation is not bound by it. By 1949, the treaty was becoming viewed less as a reciprocal contract and more as an agreement on fundamental human rights. Ratifying the treaty binds the nation to uphold these rights regardless of the behavior of the opposing nation.
___

My Commentary, 


-Thus the Geneva convention Does Not Apply to Non State Actors (nor POWs not claimed by a state)
___

Geneva Convention Common Article 2  

specifies which parties are bound and under what circumstances 
That any armed conflict between two or more high contraction parties covered That applies to occupations of a High Contraction Parties That the relationship between the High Contraction Parties and a non-signatory the party will remain bound until the non-signatory no longer acts under the Strictures of the convention
__________________________________________________________________________________

FDA Legal Brief: No Right To Food Choice

FDA Legal Brief
BRIEF IN SUPPORT OF UNITED STATES’ MOTION TO DISMISS
PLAINTIFF’S AMENDED COMPLAINT

Case 5:10-cv-04018-MWB   Document 11-1    Filed 04/26/10

No. C 10-4018-MWB


EXCERPT
__________________________________________________________________________________
Unquestionably, FDA’s regulations prevent individuals from introducing
unpasteurized milk into interstate commerce, but they in no way affect the ability of
individuals to travel from one state to another, to be subject to the same laws as
citizens of a state in which they are visiting, or for those moving to a new state to be to
be subject to the same laws as the citizens already residing there. “[T]o recognize a
fundamental right to interstate travel in a situation that does not involve any of these
circumstances would extend the doctrine beyond the Supreme Court’s pronouncements
in this area.” Doe v. Miller, 405 F.3d 700, 712 (8th Cir. 2005); see also Monson v. DEA,
589 F.3d 952, 963 (8th Cir. 2009) (holding that it is “well-established” that under the
Commerce Clause “Congress is permitted to regulate purely local activities that . . .
have a substantial effect on interstate commerce”). Accordingly, plaintiffs’ claim that
Case 5:10-cv-04018-MWB Document 11-1 Filed 04/26/10 Page 23 of 30
pg24
__________________________________________________________________________________
the constitutional right to travel encompasses the right to travel with unpasteurized milk
must fail.
4. FDA’s Regulations Do Not Infringe Upon Substantive Due Process
Rights.
Plaintiffs contend that FDA’s regulations violate certain “fundamental rights”
purportedly protected by the Due Process Clause of the Fifth Amendment: (1) the
“fundamental right to raise their famil[ies] in their own way, which includes what foods
they do and do not choose to consume for themselves and their families;” (2) the
“fundamental right to their own bodily and physical health, which includes what foods
they do and do not choose to consume for themselves and their families;” and
(3) fundamental “contract rights” to “the use of an agent to accomplish what the
principal herself ought to be free to do,” which includes having “raw milk . . . transported
across State lines by an agent.” Am. Compl. ¶¶ 117-118, 135, 143-144.
“In evaluating this argument, it is important to consider the Supreme Court’s
admonition that ‘substantive due process analysis must begin with a careful description
of the asserted right, for the doctrine of judicial self-restraint requires us to exercise the
utmost care whenever we are asked to break new ground in this field.’” Doe, 405 F.3d
at 710 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)) (add’l citation and quotation
marks omitted). One reason for judicial restraint in this area is that “[b]y extending
constitutional protection to an asserted right or liberty interest, we, to a great extent,
place the matter outside the arena of public debate and legislative action.” Washington
v. Glucksberg, 521 U.S. 702, 720 (1997); see also Collins v. Harker Heights, 503 U.S.
115, 125 (1992) (“[T]he Court has always been reluctant to expand the concept of
substantive due process because guideposts for responsible decisionmaking in this
Case 5:10-cv-04018-MWB Document 11-1 Filed 04/26/10 Page 24 of 30
pg25
__________________________________________________________________________________
unchartered area are scarce and open-ended.”). Thus, the Supreme Court has
established demanding criteria for the recognition of fundamental rights; a plaintiff must
show both that the rights claimed “are, objectively, deeply rooted in this Nation’s history
and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty
nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 720-21 (citation
and quotation marks omitted). Plaintiffs fall far short of satisfying these criteria.
a. There is No Absolute Right to Consume or Feed Children Any
Particular Food.
Although “[t]wo of the earliest right to privacy cases,” Meyer v. Nebraska, 262
U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), “established the
existence of a fundamental right to make child rearing decisions free from unwarranted
governmental intrusion,” these cases do not “establish an absolute parental right to
make decisions relating to children free from government regulation.” Henne v. Wright,
904 F.2d 1208, 1214 (8th Cir. 1990) (citing Prince v. Massachusetts, 321 U.S. 158
(1944)). Plaintiffs’ generalized assertion of “fundamental privacy rights of raising their
families in the way they see fit,” Am. Compl. ¶ 120, falls far short of the “careful
description of the asserted right” that forms the starting point of the “established method
of substantive-due-process analysis.” Glucksberg, 521 U.S. at 720-21. Here, plaintiffs’
“characterization of a fundamental right to ‘personal choice regarding the family’ is so
general that it would trigger strict scrutiny of innumerable laws and ordinances that
influence ‘personal choices’ made by families on a daily basis.” Doe, 405 F.3d at 710;
see also Henne, 904 F.2d at 1214 (upholding a restriction on parents’ choice of
surnames for children that allegedly violated the broad right to make “parental decisions
relating to child rearing”).
Case 5:10-cv-04018-MWB Document 11-1 Filed 04/26/10 Page 25 of 30
pg26
__________________________________________________________________________________
The interest claimed by plaintiffs could be framed more narrowly as a right to
“provid[e] them[selves] and their families with the foods of their own choice.”
Am.
Compl. ¶ 120. But there is no “deeply rooted” historical tradition of unfettered access to
food of all kinds.
See Glucksberg, 521 U.S. at 721. To the contrary, society’s long
history of food regulation stretches back to the dietary laws of biblical times.
See Peter
Barton Hutt & Peter Barton Hutt II, A History of Gov’t Regulation of Adulteration &
Misbranding of Food, 39 Food, Drug & Cosmetic Law J. 2, 3 (1984)
(citing Leviticus 11,
17 and 19, and Deuteronomy 14). Modern food safety regulation in the United States has its roots in the early food laws of the American colonies, which themselves
incorporated “the tradition of food regulation established in England.
Id. at 35; see also id. at 43 (citing a Virginia statute passed in 1873, that “made it an offense . . . [to]
knowingly, sell, supply, or bring to be manufactured . . . milk from which any cream has been taken; or milk commonly known as skimmed milk”). Comprehensive federal
regulation of the food supply has been in effect at least since Congress enacted the
Pure Food and Drugs Act of 1906, and was strengthened by the passage of the FDCA in 1938.
Thus, plaintiffs’ claim to a fundamental privacy interest in obtaining “foods of their own choice” for themselves and their families is without merit. Am. Compl. ¶ 120. b. There is No Generalized Right to Bodily and Physical Health.
Plaintiffs’ assertion of a “fundamental right to their own bodily and physical
health, which includes what foods they do and do not choose to consume for
themselves and their families” is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish. In addition, courts have consistently refused to extrapolate a generalized right to “bodily and physical health” from the Case
5:10-cv-04018-MWB Document 11-1 Filed 04/26/10 Page 26 of 30
pg27

Agenda 21 and Obama's Rural Council

http://www.theblaze.com/stories/does-the-new-white-house-rural-council-uns-agenda-21/
On June 9, 2011, President Obama signed his 86th Executive Order [Executive Order 13575—Establishment of the White House Rural Council June 9, 2011], and almost nobody noticed.

(For the record, Obama is on par to match President Bush’s 291 orders executed during his two terms in office.
Section One of 13575 states the following:
Section 1. Policy. Sixteen percent of the American population lives in rural counties. Strong, sustainable rural communities are essential to winning the future and ensuring American competitiveness in the years ahead. These communities supply our food, fiber, and energy, safeguard our natural resources, and are essential in the development of science and innovation. Though rural communities face numerous challenges, they also present enormous economic potential. The Federal Government has an important role to play in order to expand access to the capital necessary for economic growth, promote innovation, improve access to health care and education, and expand outdoor recreational activities on public lands.
Warning bells should have been sounding all across rural America when the phrase “sustainable rural communities” came up. As we know from researching the UN plan for Sustainable Development known as Agenda 21, these are code words for the true fundamental transformation America.
The third sentence also makes it quite clear that the government intends to take greater control over “food, fiber, and energy.”
The last sentence in Section 1 further clarifies the intent of the order by tying together “access to the capital necessary for economic growth, health care and education.”

__________________________________________________________________________________

http://canadafreepress.com/index.php/article/37561

Canada Free Press
Excerpt -
On June 9, 2011, an Executive Order established the White House Rural Council with 25 executive branch departments including Defense, Justice, Homeland Security, National Drug Control, Environmental Quality, Labor, Commerce, Interior, EPA, Housing, Health, Education to name just a few.
The order covers 16% of the American population who lives in rural counties because they “supply our food, fiber, and energy, safeguard our natural resources, and are essential in the development of science and innovation.”

__________________________________________________________________________________

http://www.americanthinker.com/2009/10/un_agenda_21_coming_to_a_neigh.html

American Thinker 
Excerpt-

Most Americans are unaware that one of the greatest threats to their freedom may be a United Nations program known as Agenda 21. The United Nations Department of Economic and Social Affairs, Division for Sustainable Development created Agenda 21 as a sustainability agenda which is arguably an amalgamation of socialism and extreme environmentalism brushed with anti-American, anti-capitalist overtones.

__________________________________________________________________________________



AGENDA 21, it is not a “Conspiracy Theory” its an agenda, undenied, if unpublicized. Watch this video, & then read the document. Choose your own source: Here! Let Me Google That For You!

DO NOT SIMPLY ASSUME: “awe, it’ll never happen” TYRANNY IS NOT AVERTED BY CHANCE, & IGORANCE IS THE ENEMY, BEING FOREWARNED IS BEING FOREARMED
 __________________________________________________________________________________ 
__________________________________________________________________________________

SECESSION

Excerpt of Lincoln's Inaugural Address
I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.

Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?
Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union."

But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.

I therefore consider that in view of the Constitution and the laws the Union is unbroken, and to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. Doing this I deem to be only a simple duty on my part, and I shall perform it so far as practicable unless my rightful masters, the American people, shall withhold the requisite means or in some authoritative manner direct the contrary. I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it will constitutionally defend and maintain itself.
Notes by Asderathos 

[Lincoln] [Obama and Lincoln]


It is held that the Confederacy's attempt of disunion was pre-emptive to any unlawful action by Govt. and lacking any such sited responsible illegal cause for action, their Provocations and Usurpation cannot be defended. 
Necessary lawful and Unanimous steps for disunion NOT Being necessary, based upon Acts (Exampled in history by The Stamp Act) as Illegal Self-Contradictory to notion of the citizenship of colonists and Tyranical. 
The repeal of the Stamp Act was followed by The "DECLARATORY Act", passed by British Parliament to affirm its authority to “make laws . . . of sufficient force and validity to bind the colonies and people of America . . . in all cases whatsoever.” -[NationalHumanitiesCenter.org] That is to say an UNLIMITED Governance.

[Declaration]

The question becomes what is Illegal when laws contradict; particularly in regards to Constitutional Amendments as well as modern legislation presuming the position that Govt. is the source of Individual Rights rather than their mere protector (which impunes the justification for the American Revolution); 

Governments being instituted among Men deriving their just powers from the consent of the governed, all men being created equal, that their being endowed by their Creator with certain unalienable Rights, among them being Life, Liberty and the pursuit of Happiness (Property Excluded solely to avoid endorsing slavery)


 That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
    
Should not the dismissal of founding documents of law by officialdom; having not been changed by due process but reinterpreted, demand by those very documents' logic an abolition or secession? 

Emancipation was disallowed by necessitous due process of law until the formation of and attack by the Illegal Confederacy, it being deemed necessary as a Wartime Measure; The 13th Amendment being the domestic change in rule of law; and the Emancipation Proclamation (Having no power of law within them) merely deemed escaped slaves from the Seceded States to be freed.
   
__________________________________________________________________________________
 

Monday, June 27, 2011

The Bill of Rights

The US Constitutional Amendments 1-10


First Amendment
Freedom of Religion, Speech, Press, Assembly, and Petition

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Time Space and Manner


The Free Speech Clause of the First Amendment is not absolute. It has never been interpreted to guarantee all forms of speech without any restraint whatsoever... State and federal governments may place reasonable restrictions on the time, place, and manner of individual expression... (TPM) restrictions accommodate public convenience and promote order by regulating traffic flow, preserving property interests, conserving the environment, and protecting the administration of justice. 

Louis Dembitz Brandeis
"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of free speech to free men from bondage of irrational fears. . . Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. . .

Oliver Wendell Holmes Jr.
In a series of opinions during and after the First World War, he held that the freedom of expression guaranteed by federal and state constitutions simply declared a common-law privilege to do harm, except in cases where the expression, in the circumstances in which it was uttered, posed a "clear and present danger" of causing some harm that the legislature had properly forbidden. In Schenck v. United States, Holmes announced this doctrine for a unanimous Court, famously declaring that the First Amendment would not protect a person "falsely shouting fire in a theatre and causing a panic."

Voltaire aka Fran├žois-Marie Arouet 
"I may not agree with what you say but i will defend to the death your right to say it!"

Second Amendment 
Right to Bear Arms
A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.

Samuel Adams (February 6, 1788), reported in Charles Hale, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts (1856), p. 86. 
And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms. 
This language was proposed in the Massachusetts convention for ratification of the U.S. Constitution to be added to Article I of that document.

(40 Reasons To Own Firearms)

Third Amendment
Quartering of Soldiers
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. 

Fourth Amendment
Search and Seizure
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment
 Trial, Double Jeopardy, and Immanent Domain
No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment
Right to Speedy Trial, Confrontation of Witnesses
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Gideon v. Wainwright, 372 U.S. 335 (1963), is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys.


Gideon v. Wainwright: 372 U.S. 335 (1963), is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys.

Seventh Amendment
Trial by Jury in Civil Cases
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

Eighth Amendment
Cruel and Unusual Punishment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Ninth Amendment
Enumerated Powers Infinite Freedoms
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The final text of the Ninth Amendment, like Madison's draft, speaks of other rights than those enumerated in the Constitution. The character of those other rights was indicated by Madison in his speech introducing the Bill of Rights (emphasis added):
It has been said, by way of objection to a bill of rights....that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation, but they are not as conclusive to the extent it has been proposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse.[5]

Tenth Amendment
A Limited Federal Government
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


Seth Lipsky's Guide
"In 1995, the Supreme Court, in a 5 to 4 decision in U.S. Term Limits v. Thornton, struck down the Arkansas restrictions, ruling that no qualification can be imposed beyond those enumerated in the Constitution. In a dissent, Justice Thomas wrote: 'Where the Constitution is silent about the exercise of a particular power—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks that power and the states enjoy it.'"


James Madison in The Federalist Papers' No. 45 wrote
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
 The 10th Amendment Center

The Bill Of Rights In General

The Bill of Rights' Incorporation Extended to States  
[Wikipedia] 

Originally, the Bill of Rights restrictions applied only to the federal government and not to the several state governments. Parts of the amendments initially proposed by Madison that would have limited state governments ("No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.") were not approved by Congress, and therefore the Bill of Rights did not apply to the powers of state governments.

States had established state churches up until the 1820s, and Southern states, beginning in the 1830s, could ban abolitionist literature. In the 1833 case Barron v. Baltimore, the Supreme Court specifically ruled that the Bill of Rights provided  
"security against the apprehended encroachments of the general government—not against those of local governments." 
In the Gitlow v. New York, 268 U.S. 652, (1925) case, the Supreme Court ruled that the Fourteenth Amendment, which had been adopted in 1868, could make certain applications of the Bill of Rights applicable to the states. However, the Gitlow case stated (p. 666): 
"For present purposes we may and do presume that freedom of speech and of the press - which are protected by the First Amendment from abridgment by Congress - are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." 
However at p. 668, the Court held: 
"It does not protect publications prompting the overthrow of government by force", 
which Gitlow and associates advocated in their publications. The Supreme Court has cited Gitlow v. New York as precedent for a series of decisions that made most, but not all, of the provisions of the Bill of Rights restrictions applicable to the states under the doctrine of selective incorporation.

1833-1963

The Incorporation (of the Bill of Rights) is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment, although some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis. Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. It states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

Amendment I

Guarantee against establishment of religion
Guarantee of freedom of speech
Guarantee of freedom of the press
Guarantee of freedom of assembly
Right to petition for redress of grievances
  • It appears that no one case incorporates this right individually. However, dicta in Edwards v. South Carolina, 372 U.S. 229 (1963) suggests that this right is incorporated along with all the other First Amendment guarantees.
  • This right, though not in the words of the first amendment, was first mentioned in in the case NAACP v. Alabama, and was at that time applied to the states.

A Patriot's History of the United States 
pg126 God's Bill of Rights against Government
Religious, and especially Christian, influences in the Constitution and the Bill of Rights were so predominant that as late as the mid-twentieth century, the chairman of the Sesquicentennial Commission on the Constitution answered negatively when asked if an atheist could become president: “I maintain that the spirit of the Constitution forbids it. The Constitution prescribes and oath of affirmation…[that] in its essence is a covenant with the people which the President pledges himself to keep with the help of Almighty God.”90 Modern interpretations of the Constitution that prohibit displays of crosses in the name of religious freedom would rightly have been shouted down by the Founders, who intended no such separation.
The Second Amendment addressed Whig fears of a professional standing army by guaranteeing the right of citizens to arm themselves and join militias. Over the years, the militia preface has become thoroughly (and often, deliberately) misinterpreted to imply that the framers intended citizens to be armed only in the context of an army under the authority of the state. In fact, militias were the exact opposite of a state-controlled army: the state militias taken together were expected to serve as a counterweight to the federal army, and the further implication was that citizens were to be as well armed as the government itself!91 The Third Amendment buttressed the right of civilians against the government military by forbidding the quartering (housing) of professional troops in private homes.
 A Patriot's History of the United States
pg126 God's Bill of Rights against Government
Amendments Four through Eight promised due process via reasonable bail, speedy trials (by a jury of peers if requested), and habeas corpus petitions. They forbade self-incrimination and arbitrary search and seizure, and proclaimed, once again, the fundamental nature of property rights. The Ninth Amendment, which has lain dormant for two hundred years, states that there might be other rights not listed in the amendments that are, nevertheless, guaranteed by the Constitution. But the most controversial amendment, the Tenth, echoes the second article of the Articles of Confederation in declaring that the states and people retain all rights and powers not expressly
granted to the national government by the Constitution. It, too, has been relatively ignored. 
These ten clear statements were intended by the framers as absolute limitations on the power of government, not on the rights of individuals. In retrospect, they more accurately should be known as the Bill of Limitations on government to avoid the perception that the rights were granted by government in the first place.

Jerome Huyler, "Locke in America : the moral philosophy of the founding era", University Press of Kansas, (1995)
To some degree, the Bill of Rights (and the American Revolution) incorporated the ideas of John Locke, [The Declaration was said to be Copied from it] who argued in his 1689 work Two Treatises of Government that civil society was created for the protection of property (Latin: 'proprius', or 'that which is one's own', meaning "life, liberty, and estate").
Locke also advanced the notion that each individual is free and equal in the state of nature. Locke expounded on the idea of natural rights that are inherent to all individuals, a concept Madison mentioned in his speech presenting the Bill of Rights to the 1st Congress. Locke's argument for protecting economic rights against government may have been most salient to the framers of the Amendments; quartering and cruel punishments were not the current abuses of 1791.
 Chapter 8, pp.218–250; also pp. 275–9. For 'many scholars' discussion of economic rights and the Amendments, see p. 277

Madison's preemptive proposal

Prior to listing his proposals for a number of constitutional amendments, Madison acknowledged a major reason for some of the discontent with the Constitution as written:
"I believe that the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary."
http://www.constitution.org/jm/17890608_removal.htm
 
On June 8, 1789, Madison submitted his proposal to Congress. In his speech to Congress on that day, Madison said:
"For while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents." 
"[Madison introduced] amendments culled mainly from state constitutions and state ratifying convention proposals, especially Virginia's." -Leonard W. Levy "Origins of the Bill of Rights" 'New Haven: Yale University Press' (1999) ISBN 0-300-08901-5, p.35
Article 13 of the Virginia Declaration of Rights [asd-blog]

Color Coding

The Constitution Itself
Notes on the Constitutional Convention and Federalist Papers
My Writings
The Writing of Another
The Writing or Ideas of Another written or reference by that first other 
Seth Lipsky's Guide
The Writings of others in Lipsky's Guide

Sociable